Month: October 2016

There is urgency brought on by poor planning, poor execution, or being simply blindsided by a surprise issue. There is a last minute realization that a foreign defendant must be joined, and a long delay will grind the litigation to a halt. Or there is simple unfamiliarity with the rules by a practicing bar that rarely faces cross-border procedural demands.

Tried & true concepts in litigation are changing at extraordinary speed (a platitude, to be sure), and litigation involving foreign parties and witnesses is becoming a major challenge for attorneys and courts in every jurisdiction.

Fortunately, rules in most courts provide ample time for service, especially Federal Rule 4(m), which specifically abrogates a hard 90-day deadline for service where the defendant is outside the United States. As long as counsel isn’t dilatory (I had to look that one up), the spirit of the deadline is honored once a request for assistance is handed off to a foreign authority. At that point, a lawyer can only wait for the authority to accommodate the request. [NB: Most states reach similar conclusions by either procedural rule or case law. Wisconsin and Michigan are the lone holdouts, and even they may offer some safe harbor to litigants.]

Critical in this analysis is the mandatory and exclusive nature of the Hague Service Convention. In Volkswagenwerk AG v. Schlunk, 486 U.S. 694 (1988), Justice O’Connor wrote for a unanimous court that, where the Convention applies, its strictures must be followed. The channels set forth by the Convention mean vastly different things in the various countries where it applies, and for the most part, this means the U.S. court hearing a case must usually wait patiently for service to be effected. Simply put, our rules do not apply elsewhere.

Effective service abroad serve usually cannot be timed with a clock… several pages of a calendar comprise the better measuring device.* In some cases, service can take over a year to be proved up.

Yet 4(m)’s safe harbor does not give an attorney unlimited time. The dilatory among us face sure dismissal, and it takes a long time to reach that level.

* Exceptions to this: parts of Canada, Australia, and England, where Article 10 negates the need for government channels to have a defendant served. In rare cases, process can be served within a matter of hours, and proved within days. But don’t bet the farm on this possibility. Ever.

Image: “10 O’Clock On A Sunny Summerday”, Robin Heymans, via Wikimedia Commons. (For the record, Big Ben is the bell inside the tower. The former St. Stephen’s Tower has been renamed Elizabeth Tower.)

Well, good. I’ve wondered for two decades why they didn’t just do that in the first place. Still, a rose by any other name…

Point is, Czechia is still a member of NATO, still a member of the EU (for now?), and still a member of the Hague Service Convention. It still objects to alternative methods of service under Article 10, it still requires translation, and it’s still pretty quick about getting the job done when we request service of process on a Czech defendant.

Now, if I can just find the time to get over there to see Prague! (And maybe advise our embassy about the change.)

They literally catch fire. Literally. Not in a “using the word ‘literally’ to make a hyperbolic argument sound stronger than it is” sense. The things emit flame, without warning and seemingly without reason. The Samsung Galaxy Note 7 has become the new poster-child for defective products. As if designed by Irwin Mainway himself (he of Johnny Space Commander fame). See The Guardian’s latest (as of this writing, October 19, 2016) story here. And USA Today’s bit about the Note 7 flight ban. And the NYT’s take on how the thing plays out in China. The company has rolled out a worldwide recall of the entire Note 7 line, but that doesn’t help the thousands of buyers whose handsets have already injured them.

Lawsuits have already begun, but Samsung is a highly sophisticated defendant. If the company is not properly served—at its headquarters—then a suit has zero chance of progressing past the complaint stage. Yet Service of process in Korea is not as daunting as it might seem. It does require accuracy in drafting and, despite the obvious competence of this particular defendant in English, translation into Korean is required. [Help is available to the practitioner who does not wish to spend ten hours getting up to speed on the procedure.]

The Republic of Korea (ROK) is party to the Hague Service Convention, the strictures of which are mandatory in U.S. and Canadian law (the Note 7 catches fire in Canada too). While the text of the treaty itself sets forth several methods for service of process, only one method is acceptable to all countries who have enacted the agreement. Article 5 service entails a request to a Central Authority in the “destination state”, and is available universally.* Article 10 sets out additional methods of service, provided that (1) the method used is acceptable under forum court rules, and (2) the destination state does not object.

In the case of Korea, alternatives are off the table completely. Yes, FRCP 4(f)(2)(C)(ii) allows service by mail. Many states likewise allow service by mail—some judges even require it regardless of Hague status. Usual practice in common law jurisdictions calls for service by private agent.

So you intend to sue Samsung because a Note 7 spontaneously combusted in your client’s hand? Serve Samsung properly.[And also be sure to go after the source manufacturer of the batteries… they might be somewhere else entirely.]